United States District Court, N.D. New York
GARVEY, Plaintiff, pro se.
ORDER AND REPORT-RECOMMENDATION
Andrew T. Baxter U.S. Magistrate Judge.
Clerk has sent to the court for review a civil rights
complaint brought pursuant to 42 U.S.C. § 1983 and
exhibits in support of the complaint. (Dkt. Nos. 1, 4).
Plaintiff has also filed motions to proceed in forma pauperis
(“IFP”). (Dkt. Nos. 2-3).
review of plaintiff's motions to proceed IFP shows that
plaintiff has failed to properly complete either document,
and the documents contain conflicting information even though
they were filed on the same day. (Dkt. Nos. 2, 3). In
plaintiff's first motion, he states that, in the past
twelve months, he has received money from gifts or
inheritances, but does not answer the question regarding the
description of such money. (Dkt. No. 2 ¶ 3(f)). However,
in the second motion, he states that he has not received
money from gifts or inheritances. (Dkt. No. 3 ¶ 3(f)).
In plaintiff's first motion, he states that he has cash
in a checking account, and the amount “Depends
$100-$1000, ” while in the second motion, he states
that he has $1000 in his account. (Dkt. Nos. 2, 3, ¶ 4).
In plaintiff's first motion, he states that he has no
real estate, stocks, bonds, securities, other financial
instruments, automobiles or any other thing of value. (Dkt.
No. 2 ¶ 5). In plaintiff's second motion, he has
answered “Yes” to this question, but does not
describe the property or its approximate value. (Dkt. No. 3
¶ 5). The rest of plaintiff's second motion seems to
be completed correctly. However, with such conflicting
information, this court cannot determine whether plaintiff
meets the financial criteria for proceeding without payment
the court would allow plaintiff to submit a properly
completed form. However, notwithstanding the deficiencies in
plaintiff's application, the court will continue with its
analysis because the court finds that plaintiff fails to
state a claim and will recommend dismissal of this action.
addition to determining whether plaintiffs meet the financial
criteria to proceed IFP, the court must also consider the
sufficiency of the allegations set forth in the complaint in
light of 28 U.S.C. § 1915, which provides that the court
shall dismiss the case at any time if the court determines
that the action is (i) frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B)(i) -(iii).
determining whether an action is frivolous, the court must
consider whether the complaint lacks an arguable basis in law
or in fact. Neitzke v. Williams, 490 U.S. 319, 325
(1989). Dismissal of frivolous actions is appropriate to
prevent abuses of court process as well as to discourage the
waste of judicial resources. Neitzke, 490 U.S. at
327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th
Cir. 1974). Although the court has a duty to show liberality
toward pro se litigants, and must use extreme
caution in ordering sua sponte dismissal of a
pro se complaint before the adverse party has been
served and has had an opportunity to respond, the court still
has a responsibility to determine that a claim is not
frivolous before permitting a plaintiff to proceed.
Fitzgerald v. First East Seventh St. Tenants Corp.,
221 F.3d 362, 363 (2d Cir. 2000) (finding that a district
court may dismiss a frivolous complaint sua sponte
even when plaintiff has paid the filing fee).
survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Bell Atl.
Corp., 550 U.S. at 555).
does not recite many of his facts in full sentences, but the
court will attempt to determine what plaintiff is claiming by
reviewing the complaint and the exhibits that plaintiff has
filed in support of the complaint. See Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (pro se papers
are interpreted liberally to raise the strongest arguments
suggested therein). Plaintiff is suing Morgan Communities
(“MC”) for “wrongful eviction.”
(Complaint (“Compl.” ¶ 4) (Dkt. No. 1). MC
is the owner of the apartment complex in which he lived.
(Id.) He states that defendant MC committed fraud
and made false accusations to the police and to the
“court system.” Plaintiff also mentions libel and
slander, which allegedly “caused the eviction, ”
emotional distress, and “rent lease ejectment.”
has used a form-complaint for actions brought under 42 U.S.C.
§ 1983, which contains a section entitled “Causes
of Action.” (Compl. ¶ 5). Plaintiff has filled in
“Causes of Action, ” but the statements are more
in the nature of additional facts. Plaintiff claims that
defendant MC caused his wrongful eviction, and “[the]
Judge is not willing to evaluate [the] case. (Id.)
Plaintiff states that “they
docketed” a lease which “dis-includes”
also alleges that the false police reports contained
statements “against” the plaintiff which damaged
him, and the wrongful eviction caused emotional distress.
Plaintiff states that based on the false reports, “they
have caused negligence in conduct along with perjury on
documents. Plaintiff claims that there was no evidence for
the “judge” to grant eviction. In a footnote,
marked with an asterisk, plaintiff apologizes for the
“excessive documents” that he has filed in
support of the complaint, but blames this on “Judge
Lauri” and his lack of knowledge of tenancy laws.
(Compl. at CM/ECF p.4). Plaintiff states that he has been
“fighting to be heard on this eviction.”
(Id.) Plaintiff seeks substantial monetary damages.
(Compl. ¶ 6).